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    This comparative study looks into the proposed “vaccine passport” initiative from various human rights aspects. It was undertaken by the Global Digital Human Rights Network, an action started under the EU’s Cooperation in Science and Technology programme. The network currently unites more than 80 scholars and practitioners from 40 countries. The findings are based on responses to questions put to the network members by the authors of this study in February 2021.


Mart Susi
Mart Susi is Professor of Human Rights Law at Tallinn University, Editor-in-Chief, Action Chair of Global Digital Human Rights Network.

Tiina Pajuste
Tiina Pajuste is Professor of International Law and Security at Tallinn University.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.
Article

Access_open European Standards of Judicial Independence in Lithuania

Journal East European Yearbook on Human Rights, Issue 1 2021
Keywords judicial independence, selection of judges, appointment of judges, rule of law, mutual trust
Authors Vygantė Milašiūtė and Skirgailė Žalimienė
AbstractAuthor's information

    The article examines the procedure for selection and appointment of judges in Lithuania in the light of the European standards of judicial independence. Both the Council of Europe and the European Union (EU) legal materials are relied on. The procedural role of different actors, the criteria for assessment of candidates, the question of judicial review of selection and appointment decisions as well as the problem of delays of judicial appointments are also examined. Even though the Lithuanian system for the selection and appointment of judges has been assessed favourably by European institutions, certain elements of the system are questionable. However, as long as these deficiencies are not systemic and do not raise issues of the rule of law in the sense of EU law, they would not negatively affect the operation of the EU law-based mutual trust instruments with respect to Lithuania. A suggestion is made that paying more attention to non-systemic deficiencies of judicial independence and the rule of law in EU member states could be beneficial for improving the protection of individual rights.


Vygantė Milašiūtė
Vygantė Milašiūtė: Associate professor at Vilnius University, Faculty of Law.

Skirgailė Žalimienė
Skirgailė Žalimienė: Associate professor at Vilnius University, Faculty of Law.
Article

The Right of Appeal against a Decision on Disciplinary Liability of a Judge

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords disciplinary proceedings, scope of judicial review, standard of judicial review, remedial measures
Authors Taras Pashuk PhD
AbstractAuthor's information

    This article deals with the questions of scope and the standard of judicial review of a disciplinary decision against a judge. It further addresses the issue of remedial powers, which should be granted to the reviewing authority in this type of cases. It is suggested that the scope of judicial review of a disciplinary decision against a judge should extend to questions of law, fact and discretion. What actually varies is the depth of review or, more precisely, the standards of review and the corresponding level of deference, which must be demonstrated to the primary decision-making authority. It is further suggested that there are several factors that have influence on the formation of the standards of review: the institutional, procedural and expertise factors. As to the remedial capacity, the reviewing court should be provided with the competence to apply adequate remedial measures. The reviewing court should be able to effectively eliminate the identified shortcomings in the proceedings before the first-instance authority. For the effective protection of the rights at issue, it may be important for the reviewing court not only to repeal the decision subject to review, but also take other remedial measures. The legitimacy and necessity for applying particular remedial action should be established by taking into account the same institutional, procedural and expertise factors.


Taras Pashuk PhD
PhD (Ivan Franko National University of Lviv, Ukraine), lawyer at the Registry of the European Court of Human Rights. This article has been written in personal capacity, and the thoughts expressed in it cannot be attributed to any Council of Europe body.
Article

On Lessons Learned and Yet to Be Learned

Reflections on the Lithuanian Cases in the Strasbourg Court’s Grand Chamber

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords human rights, European Convention on Human Rights, European Court of Human Rights, Lithuania
Authors Egidijus Kūris
Abstract

    During the two-and-a-half decades while Lithuania has been a party to the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has decided five Lithuanian cases. They all (perhaps but one) raised controversial issues not only of law but also of those pertaining to matters non-legal: psychology, politics, history and so on. There had been follow-ups to most of them, allowing for consideration as to the merits and disadvantages of the respective judgments. These cases are narrated on in their wider-than-legal context and reflected upon from the perspective of their bearing on these issues and of the lessons they taught both to Lithuania, as a respondent State, and to the Court itself.


Egidijus Kūris
Article

The European Court of Human Rights in the States of the Former Yugoslavia

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Ex-Yugoslavia, European Court of Human Rights, domestic implementation, the rule of law, human rights
Authors Jernej Letnar Černič
AbstractAuthor's information

    The countries of the former Yugoslavia have in past decades failed to fully meet both the challenges of the socio-economic environment and of the full-fledged functioning of the rule of law and the protection of human rights. Their development was in the first decade halted by the inter-ethnic wars, while in the second decade their institutions have been hijacked by various populist interest groups. All the countries of the former Yugoslavia have been so far facing a constant crisis of liberal democratic institutions of the modern state, based on the rule of law. Only a small number of them have decided to accept effective measures to break away from such crises. In order to present the problems of the newly established democracies in the former Yugoslavia, this article presents and analyses the contributions of the European Court of Human Rights to establishing the rule of law and effective human rights protection in Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. In the closing part of the article, conclusions are drawn on how those countries should proceed to internalize the values of human rights protections in liberal democracies.


Jernej Letnar Černič
Associate Professor, Graduate School of Government and European Studies, Nova Univerza, Ljubljana, Slovenia.
Article

Regional Judicial and Non-judicial Bodies

An Effective Means for Protecting Human Rights?

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Direct access, human rights protection, judicial bodies, non-judicial bodies, direct access of individuals
Authors Ján Klučka
AbstractAuthor's information

    Regional human rights systems consisting of regional bodies, instruments and mechanisms play an important role in the promotion and protection of human rights. If one’s rights are not protected on the domestic level, the international system comes into play and protection can be provided either by the regional or global (UN) system. Regional mechanisms of human rights today cover five parts of the world, namely: Africa, the Americas, Europe, Arab countries and the Asia-Pacific. They differ in their origin, resulting from different concepts of human rights and the need of interested states to establish a regional framework for human rights protection. The level and scope of their human rights protection is obviously uneven, although this protection is generally higher in regions with democratic states that have constitutional and rule of law regimes in which human rights are considered an integral part of their constitutional architecture. However, current practice confirms that the creation of judicial systems for the protection of human rights within the context of concrete regions does not automatically guarantee the right of direct access of individuals to them. The regional particularities of locus standi result from a set of factors having historic, religious, ethnic and other nature. In the institutional system of protection of human rights, these particularities manifest also through the optional (non-compulsory) jurisdiction of regional judicial bodies, the preventive ‘filtering’ systems before non-judicial bodies (commissions) combined with the right to bring the case before a judicial body, the systems where different entities are entitled to bring the case before a judicial body but the individual has no such right etc. Nevertheless, the existing practice generally confirms the increasing role of the judicial segment of the regional human rights systems as well as the strengthening of position of individuals within the proceedings before regional human rights judicial and non-judicial bodies. A specific factor in the developing world represents the concept of a ‘strict’ interpretation of sovereignty preventing external control of the respect for human rights before a regional judicial body on the basis of an individual complaint by a concerned person. The specificities of regional systems are without detriment to their widely accepted advantages and benefits. Regional systems allow for the possibility of regional values to be taken into account when human rights norms are defined (e.g. so-called collective rights and duties within the African system), provided that the idea of the universality of human rights is not compromised. The regional systems are located closer to the individual human rights subjects and offer a more accessible forum in which individuals can pursue their cases, and states tend to show stronger political will to conform to decisions of regional human rights bodies. The existence of the regional human rights systems finally allows for the existence of proper enforcement mechanisms, which can better reflect local conditions than a global (universal) system of enforcement.


Ján Klučka
Professor of International Law, Institute of International and European Law, Law Faculty, University P.J. Šafárik, Košice, Slovakia.
Article

The European Court of Human Rights and the Central and Eastern European States

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Case law regarding Central and Eastern Europe, ECHR, human rights, reform, European system of Human Rights
Authors András Baka
AbstractAuthor's information

    At the time of its creation and during the following 30 years, the European Court of Human Rights was a Western European institution. It was not until the sweeping political changes in 1989-1990 that the Central and Eastern European countries could join the European system of individual human rights protection. The massive and relatively rapid movement of accession of the ‘new states’ to the European Convention on Human Rights had a twofold effect. On the one hand it led to a complete reform of the human rights machinery of the Council of Europe, changing the structure and the procedure. A new, permanent and more efficient system emerged. What is even more important, the Court has had to deal with not only the traditional questions of individual human rights but under the Convention new issues were coming to the Court from applicants of the former eastern-bloc countries. On the other hand, being part of the European human rights mechanism, these countries got a chance to establish or re-establish the rule of law, they got support, legal standards and guidance on how to respect and protect individual human rights. The article addresses some of these elements. It also points out that public hopes and expectations towards the Court – especially nowadays in respect of certain countries – are sometimes too high. The Court has its limits. It has been designed to remedy certain individual injustices of democratic states following common values but cannot alone substitute seriously weakened democratic statehood.


András Baka
Former judge of the ECtHR (1991-2008); former president of the Hungarian Supreme Court.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
Article

Victims’ Right to Reparation in Light of Institutional and Financial Challenges

The International Criminal Court and the Reparation for the Victims of the Bogoro Massacre

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Bogoro massacre (DRC), International Criminal Court, Katanga case, reparation, victims
Authors Péter Kovács
AbstractAuthor's information

    The aim of the article is the presentation of the recently issued documents – the ‘Order for reparation’ issued by the Trial Chamber II of the ICC and the document called ‘Notification’, recently adopted by the Trust Fund for Victims of the ICC – which are important first and foremost in the reparation procedure of the victims of the Bogoro massacre, subsequent to the case The Prosecutor v. Germain Katanga. Second, these documents will also have a considerable impact on the reparation procedures to be carried out by the ICC in the future. The reader can also see the interactions between classic sources of public international law and those norms which are very difficult to be characterized legally but without a doubt play a very important role during the procedure.


Péter Kovács
Professor of international law at the Péter Pázmány Catholic University, Budapest, and judge of the International Criminal Court (2015-2024).
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